The Civil Process Flashcards
Estate
All property left by someone who has died
Civil law
A violation of civil law does not directly harm the community, the person harmed sues the violator
Court
The tribunal or forum, where the trial occurs, as well as the judge himself. The judge is the trier of law at the trial.
Liable
Legally responsible
Damages
An amount of money paid to atone for injury or economic loss
Doctrine
A legal concept generally excepted by most courts which, although often not law, common offers guidance to the court. Legislatures will sometimes codify, or make into law, a popular doctrine.
Joint and several liability
When multiple defendants may be found liable as a group (jointly), or separately (several).
Retainer
Money paid to an attorney to secure her services. Also refers to the contract between the attorney and the client. When an attorney is retained, she works in a representative capacity on behalf of the client.
Appearance
When an attorney acts on behalf of a client in court. This action may be either a personal appearance in front of the judge, or the filing of a document, such as a complaint or motion with the court on behalf of the client.
Attorney-of-record
Once an attorney has entered an appearance, he, or she is the attorney of record in the case.
Venue
The place of trial, the physical location.
Diversity of citizenship
When is federal court hears a case based upon the fact that the parties are from different states, and the amount of money claimed as damages, exceeds the minimum set by federal statute, which is currently $75,000
Plaintiff
The party who initiates the action by filing a complaint, claiming injury or harm.
Statute of limitations
The time limit for filing suit. Suits filed after the time limit has run out will be dismissed. The clock generally starts to tick at the time the damage is occurred.
Summons
Document that informs the defendant that he is being sued, and that he has a specific amount of time to respond.
Complaint
The pleading that initiates litigation. Filed by the plaintiff, the complaint contains the general allegations against the defendant. It is served with the summons.
Parties
Individuals or groups involved in a legal action.
Cause of action
A legally valid reason to sue, one of the required elements of a complaint.
Information and belief
A common legal phrase that qualifies a statement as being a fact only to the best knowledge of the person making a statement. Equivalent to saying “this is what I believe happened”.
Defendant
The party against whom a complaint is filed.
Ad damnum clause
Elements of a complaint that asks for damages; also called “wherefore clause” or “ prayer relief.”
Co-defendants
Multiple defendants in a legal action.
Pleading
A document filed with the court, asking the court to take some specific legal action. A motion asks the court to rule on a procedural matter. A pleading states a parties position, and a legal action.
Allegation
A fact claimed by a party.
Jury trial
A jury is a group of citizens selected from the community to determine the outcome of a case. In most cases, either party has the right to demand a jury trial, but if both parties agree, the judge may act in place of the jury. This is most common and very technical cases, such as a complex contract situation.
Filed
A document is filed when it is presented to the clerk of the court. All documents, and any copies are date stamped by the clerk of the court at the time of filing.
Service or served
The presentation of legal papers.
Service of process
Process is the summons and complaint. Service of process is the delivery of the summons and complaint upon the defendant, in a court action. Service is usually done in person. However, service may, and some circumstances, be made by mail, I buy publishing a notice in a newspaper, or by serving a company. Serving a company is often accomplished by serving a registered agent (someone who accept service on behalf of a company).
Personal service
Service of legal papers upon an individual, as opposed to a business or registered agent.
Process server
A person who is permitted by law to serve legal documents; must be at least 18 years of age, and not a party to the action.
Affidavit
A written statement of fact sworn to Underoath.
Affiant
One who signs an affidavit
Attest
To swear
Notory public
A person authorized to administer the oath, and to verify that an individual signs a legal document.
Jurisdiction
Authority of a court to hear, and decide a case
In personam jurisdiction
Jurisdiction over a person
In rem jurisdiction
Jurisdiction over the controversy, often property
Quasi in rem jurisdiction
Jurisdiction over property, even though the property is not the controversy.
Lis pendens
Attachment, to the title of a piece of property, notifying any potential purchaser, that the title is subject to the outcome of litigation.
Lien
Attachment to the title of a piece of property, preventing its sale until a previous financial obligation has been satisfied.
Rules of court
Laws that govern the procedures of trials.
Answer
The pleading filed by the defendant, in response to the allegations contained in the complaint.
Affirmative defense
An admission that a specific act did occur, arguing, that the fault lies not with the defendant. Intended to eliminate, or reduce a plaintiffs damages.
Counterclaim
A claim by the defendant against the plaintiff. Sometimes the only determining factor as to whether a claim is an affirmative defense or a counter claim, is whether the defendant is alleging damages. If this is the case, it becomes a counter claim. A counter claim is, in essence, a pleading, presenting the defendants complaint against the plaintiff.
Cross claim
A claim by one defendant against a co- defendant. One form of cross claim occurs when one original, defendant, sues, another original defendant, but third-party complaints are also cross claims.
Third-party complaint
Pleading where a defendant sues someone not yet a party to the action.
Reply
This pleading is the plaintiffs response to a defendants counterclaim.
Default judgment
A judgment, by the court, in favor of the plaintiff, based on the fact that the defendant failed to respond in a timely fashion.
Motion
A request that the court take a specific procedural step. Pleadings usually state specific legal positions about the matter before the court, while motions, such as a motion to extend timed to respond, are procedural in nature, and act as a request for an order.
Litigation
The process of asking a court of law, to decide the outcome of a dispute; a lawsuit.
Contest
To challenge
Discovery
The methods, whereby one party obtains relevant information on a case from the other party. The method that attempts to even the playing field between parties by exposing all relevant facts, upon which the court will ultimately base its
decision. Discovery is between the parties, and does not directly involve the court, although the certificate of mailing for each document is often filed. Five common methods of discovery …
Interrogatories
Questions to the opposing party that must be answered under penalty of perjury.
Example: describe the events leading to the accident.
Request for admissions (discovery)
Written statements the opposing party must admit, or deny under penalty of perjury, failure to respond within a specified period of time, in most cases 30 days: means that the statements are assumed to be admitted.
Request for production (discovery)
A request that documents or other physical items be provided for inspection. Also referred to as a request for production or inspection of documents or property.
Request for mental or physical examination (discovery)
Request that the other party, usually the plaintive, be subjected to a mental or physical examination. This is a form of discovery that may require court approval, so that it cannot be used to intimidate.
Depositions (discovery)
Oral questions that must be answered under oath, depositions, take place out of court, most often in an attorney’s office, with a court reporter, transcribing the testimony. A court reporter is a person trained to use stenographer machine to take testimony. Depositions can take place for the purpose of questioning the opposing party or for questioning witnesses. Depositions are sometimes videotaped an audio taped./
Certificate of mailing or certificate of service
When a document is filed with the court, or when discovery is sent to a party, a certificate of mailing is usually attached. The certificate, a test that is true, and correct copy of the document was sent to all parties involved in the litigation. The certificate should be signed by the person who places it in the mail, unless the state requires an attorney signature.
Order
An official command by the court, usually demanding that one or both of the parties perform an act.
Hearing
A proceeding in court, where the judge and both parties are present.
Privilege
The right to refuse to testify, or to prevent someone else from testifying.
Ex parte hearing
A hearing at which only one party is present, such as a hearing on a motion for a restraining order. Ex parte hearings are not common..
Third-party defendant
The party against whom the third-party complaint was filed. The defendant in the original complaint becomes the “third party plaintiff.”